Introduction
On October 21, 2024, the Hon`ble Delhi High Court granted interim relief to Torrent Pharmaceuticals Ltd. in a suit for copyright infringement, passing off, and unfair competition against the Defendants, for dealing in calcium tablets under the ORBITCAL trade dress/carton packaging, alleged to be identical to the Plaintiff’s well-known SHELCAL trade dress/carton packaging.
The Plaintiff sought to protect the distinctive trade dress of its SHELCAL-500 calcium tablets against the impugned ORBITCAL-500 trade dress. The competing trade dress is reproduced below:
| Plaintiff’s Trade Dress | Defendant’s Trade Dress |
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Plaintiff’s argument
- The Plaintiff, Torrent Pharmaceuticals Ltd., has been marketing its calcium tablets under the trademark SHELCAL-500, featuring a distinctive trade dress since September 2022. This packaging includes a specific combination of colors (blue, white, and teal), design elements, and illustrations of joints, etc, which effectively communicate the product’s intended use to consumers.
- The Plaintiff’s SHELCAL-500 label /carton packaging/ trade dress, including their overall colour combination, get up, placement of features constitute “original artistic work” protected under the Copyright Act, 1957.
- The plaintiff asserted that this trade dress has acquired significant goodwill and market recognition, serving as a source identifier, evident from the fact that its sales figures for April 2023- March 2024 was over Rs. 685 crores.
- In the last week of September 2024, the Plaintiff discovered that the defendants had copied the trade dress / packaging of the Plaintiff’s product, and were marketing ORBITCAL-500 tablets in packaging bearing a trade dress strikingly similar to SHELCAL’s.
- Additionally, both the products come in tablet form and both the products have same drug composition.
- The impugned activities of the Defendants are unlawful and amount to copyright infringement, passing off, unfair competition, which is in turn causing confusion and deception amongst the public and loss to the Plaintiff.
Court’s Verdict
The Hon’ble Court, after considering the facts, found a prima facie case of copyright infringement and passing off. Consequently, an ad-interim ex-parte injunction was granted, restraining the Defendants from using the impugned carton packaging / trade dress. However, the defendants were permitted to sell their tablets in strips without the impugned carton.
Counsels for Plaintiff: Mr. Sachin Gupta, Ms. Prashansa Singh, Mr. Rohit Pradhan, Mr. Ajay and Ms. Archna